Price v. Holder, No. 3:2014cv00619 - Document 28 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by District Judge M. Hannah Lauck on 09/17/2015. Copy mailed to Plaintiff. (walk, )
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Price v. Holder Doc. 28 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division NEAL R. PRICE, Plaintiff, V- Civil Action No. 3:14CV619 LORETTA E. LYNCH,^ Attorney Generalof the United States,^ Defendant. MEMORANDUM OPINION Before the Court isDefendant's Motion to Dismiss for lack ofsubject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(l).^ (ECF No. 6.) PlaintiffNeal R. Price, proceeding pro responded, and Defendant replied."^ (ECF Nos. 21-22.) The Court dispenses with oral argument Pursuant to Federal Rule of Civil Procedure 25(d), this Court directs the Clerkof Court to terminate Eric H. Holder as a defendant and to substitute Loretta E. Lynch, who now serves as Attorney General of the United States, as the defendant in this action. ^Price names "Eric H. Holder[J Jr., the Attorney General for the United States of America, the Chief Executive Officer responsible for the actions ofthe United States Department ofJustice, the Federal Bureau ofPrisons" as the defendant. (Compl. 1, ECF No. 1.) The Court construes Price's Complaint as one against the Attorney General, now Loretta Lynch, inher official capacity. A suit against Lynch in her official capacity is a suit against the United States. Kentucky v. Graham^ 473 U.S. 159, 165-66 (1985). ^"[A] party may assert the following defenses by motion: (1) lack ofsubject-matter jurisdiction." Fed. R. Civ. P. 12(b)(1). Defendant also moves to dismiss "forfailure to state a claim upon which reliefcan be granted" pursuant to Fed. R. Civ. P. 12(b)(6). Because the Court lacks subject matter jurisdiction over the alleged claims, this alternative basis for dismissal becomes moot. Harrison v. U.S. Social Sec. Admin., No. 3:13cv435, 2014 WL 29042, at *1 (E.D. Va. Jan. 2, 2014). ^Defendant provided Price with appropriate notice pursuant to Rosehoro v. Garrison, 528 F.2d 309 (4th Cir, 1975). (ECF No, 8.) Price acknowledged on the record that he received Defendant's filings whenhe attempted to file a response labelled "Plaintiffs Motion to Dismiss." (Pi's Mot. Dismiss 2, ECF No. 13.) Dockets.Justia.com because the materials beforethe Court adequately present the facts and legal contentions, and argument would not aid the decisional process.^ Accordingly, this matter is now ripe for disposition. For the reasons that follow, the Court will grant Defendant's Motion to Dismiss (ECF No. 6) and dismiss the Complaint for lack of subject matter jurisdiction. I« Standards of Review A. Lack of Subject Matter Jurisdiction; Rule 12(bVl) In a motion to dismiss under Fed. R. Civ. P. 12(b)(1) challenging the Court's subject matter jurisdiction, the burden rests with the plaintiff, as theparty asserting jurisdiction, to prove that federal jurisdiction is proper. SeeInt7Longshoremen's Ass 'n v. Va. Int'l Terminals, Inc., 914F. Supp. 1335, 1338 (E.D. Va. 1996) (citing McNuttv. Gen. Motors Acceptance Corp., 298 U.S. 178,189 (1936); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). A motionto dismiss pursuant to Fed. R. Civ. P. 12(b)(1) can attack subject matter jurisdiction in two ways. First, a Rule 12(b)(1) motion may attack the complaint on its face, asserting thatthe complaint fails to state a claimupon which subject matter jurisdiction can lie. See Int 7 Longshoremen's Ass 914 F. Supp. at 1338; see also Adams, 697 F.2d at 1219. In such a challenge, a court assumes ^Indeed, the record contains ample, not simply adequate, briefing. On March 17, 2015, the Court provided Price with a second Roseboro notice, givinghim additional time to file a response to Defendant's Motion to Dismiss and informing him that it would construe his own "Motion to Dismiss" (ECF No. 13) as his response to Defendant's motion unless Price filed a corrected opposition. (ECF No. 20.) On March 19,2015, Price submitted a Corrected Brief in Opposition to Motionto Dismiss ("Response"). (ECF No. 21.) On March 30, 2015, after Defendant replied. Price filed "Plaintiffs Response to the New Assertions in the Defendants Response to the Plaintiffs Filing in Opposition to Motion to Dismiss and the Plaintiffs Motion to Amend" ("Sur-Reply"). (ECF No. 23.) Price did not obtain leave of court before filing his Sur-Reply, in violation of this Court's local rules. E.D. Va. Loc. Civ. R. 7(F)(1). However, in the interest ofjustice, and after giving Defendant the opportunity to respond, (ECF Nos. 24-25), the Court will consider Price's Sur-Reply. The Court ordered Price and Defendant to submit supplemental briefs, and both complied. (ECF Nos. 2526.) Finally, Defendantsubmitted a clarification of Defendant's supplemental brief (ECF No. 27.) the truth ofthe facts alleged by plaintiff, thereby functionally affording the plaintiff the same procedural protection he or she would receive under Rule 12(b)(6)® consideration. See Int 7 Longshoremen's Ass % 914 F. Supp. at 1338; see also Adams, 697 F.2d at 1219. ARule 12(b)(1) motion may also, as here, challenge the existence ofsubject matter jurisdiction in fact, apart from the pleadings. See Richmond, Fredericksburg &Potomac R.R. Co. V. United States, 945 F.2d 765, 768 (4th Cir. 1991); Int'l Longshoremen's Ass'n, 914 F. Supp, at 1338, see also Adams, 697 F.2d at 1219. In such acase, because aparty challenges the court's "'very power to hear the case,'" the trial court is free to weigh evidence to determine the existence ofjurisdiction. Int'l Longshoremen's Ass'n, 914 F. Supp. at 1338 (quoting Mortensen V. First Fed. Sav. &Loan Ass 'n, 549 F.2d 884, 891 (3d Cir. 1977)). No presumptive truthftilness attaches to the plaintiffs allegations, and the existence ofdisputed material facts will not preclude the trial court from evaluating for itself the merits ofjurisdictional claims. See Int'l Longshoremen's Ass'n, 914 F. Supp. at 1338; see also Adams, 697 F.2d at 1219. If the facts necessary to determine jurisdiction intertwine with the facts central to the merits ofthe dispute, acourt should find that jurisdiction exists and resolve any factual dispute on the merits because the jurisdictional attack would then closely mirror a challenge ofthe merits. United States v. North Carolina, 180 F.3d 574, 580 (4th Cir. 1999); Adams, 691 F.2d "A motion to dismiss under Rule 12(b)(6) tests the sufficiency ofa complaint; importantly, it does not resolve contests surrounding the facts, the merits ofa claim, orthe applicability ofdefenses." Republican Party ofN.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles A. Wright &Arthur R. Miller, Federal Practice and Procedure §1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiffs well-pleaded allegations are taken as true and the complaint is viewed inthe light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 1 F.3d 1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952. This principle applies only to factual allegations, however, and "a court considering amotion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v Iqbal 556 U.S. 662, 679 (2009). ' at 1219. Acourt need not examine jurisdiction inthat manner when a plaintiff asserts the claim solely for the purpose ofobtaining jurisdiction, or when aplaintiff raises a wholly insubstantial and frivolous claim. Bell v. Hood, 327 U.S. 678, 682-83 (1946). B. Obligation to Construe Pro se Pleadings Liberally District courts have aduty to construe pro se pleadings liberally. Bracey v. Buchanan, 55 F. Supp. 2d416,421 (E.D. Va. 1999). However, apro se plaintiff such as Price must nevertheless allege "facts that state a cause ofaction." Id. (citation omitted). The Court cannot act asapro se litigant's "advocate and develop, suasponte, statutory and constitutional claims" that the litigant failed to raise on the face of the complaint. Newkirk v. Circuit Court ofthe City ofHampton, No. 3:14cv372,2014 WL 4072212, at *1 (E.D, Va. Aug. 14, 2014). In his Response, Price asserts facts by declaring them "under penalty ofperjuiy , .. true and correct to the best ofmy information and belief"'' (PL's Resp. 2, ECF No. 21.) Such a statement fails to transform the allegations inthe affidavit or Complaint into admissible evidence. Hogge v. Stephens, No. 3:09cv582,2011 WL 2161100, at *2-3 &n.5 (E.D. Va. June 1, 2011) (treating statements sworn to under penalty ofperjury, but made upon information and beliefas "mere pleading allegations" (quoting Walker v. Tyler Cnty. Comm11 F. App'x 270, 274 (4th Cir. 2011))). Price's Complaint is unsworn. However, Price's Response restates large portions ofhis Complaint verbatim "under penalty ofperjury." (Pl.'s Resp. 3, ECF No, 21.) The Complaint itself contains 157 numbered paragraphs and spans 41 pages. As stated below, the Court dismisses the Complaint for lack of subject matter jurisdiction. While the Court could simply weigh evidence to determine jurisdiction, the Court, in the interest offairness, has treated the statements in Price's Response as pleading allegations. Thus, the Court assumes the well-pleaded factual allegations inthe Complaint to be true and views them in the light most favorable to Plaintiff, as would be required for Rule 12(b)(6) review. See Mylan Labs., 1 F.3d at 1134. C. Effect of Extrinsic Documents The parties have placed numerous extrinsic documents before the Court.® The Court may consider evidence outside the pleadings on amotion to dismiss for lack ofsubject matter jurisdiction without converting the motion to one for summary judgment and will do so here to resolve Defendant's jurisdictional challenge to the Complaint. Richmond, Fredericksburg & Potomac R.R. Co., 945 F.2d at 768. None ofthe parties contests the authenticity ofany ofthe 8 • Price attaches 54 exhibits to his Complaint. Some of the exhibits reference laws or stotements about them, (Compl. Exs. 9, 13), Bureau ofPrisons ("BOP") policies and documents, {id. Exs. 11-12, 14-19, 33-39, 49, 52-54), and other official government reports and documents, {id. Exs. 8, 20, 26,29-32,40-47). One isan exhibit list and another proffers adefinition of "ostracism." {Id. Exs. 1,21.) Of the 54 exhibits, 15 provide pertinent information specific to Price and his allegations. {Id Exs. 2-7, 10, 22-25, 27-28, 48, 50-51.) For ease ofreference, the Court employs the page numbers utilized by the CM/ECF docketing system when citing to exhibitsattached to the Complaint. Defendant attaches two declarations to her Memorandum inSupport ofMotion to Dismiss: (1) Decl. Delaine Hill ("Hill Decl."); and, (2) Decl. Beverly Singleton ("Singleton Decl."). (Def's Mem. Supp. Mot. Dismiss ("Def's Mem. Supp."), ECF Nos. 7-1, 7-2.) Defendant attaches seven exhibits to the Hill Decl.: (A) Exhibit A: Price's September 1998 Equal Employment Opportunity ("EEO") Complaint; (B) Exhibit B: Price's March 1999 EEO Complaint; (C) Exhibit C: the May 25, 2001 Equal Employment Opportunity Commission ("EEOC") Settlement Agreement regarding the 1998 and 1999 EEO Complaints; (D) Exhibit D: the June 20, 2001 EEOC dismissal ofthe 1998 and 1999 EEO Complaints; (E) Exhibit E: Price s December 2000 EEO Complaint; (F) Exhibit F: the February 2002 decision from the Department ofJustice ("DOJ") dismissing the 2000 EEO Complaint; and, (G) Exhibit G: the August 13, 2002 decision fi-om the EEOC affirming the dismissal ofthe 2000 EEO Complaint. (Hill Decl. Exs. A-G, ECF No. 7-1.) The Court notes that Exhibit F, the February 2002 decision, evinces two February dates: February 19, 2002 and February 25, 2002. {See Ex. F.) The display oftwo different February dates on Exhibit Fdoes not alter the Court's analysis. Finally, Price includes four attachments to his Response to Defendant's Motion to Dismiss: (1) Attach. 1: documents firom the Federal Labor Relations Authority regarding Price's hearing before an administrative law judge in his charge against the union; (2) Attach. 2: an "Affidavit" ofSamuel D. Engle, Jr., offered pursuant to an investigation conducted by the Federal Service Labor-Management Relations Act; (3) Attach, 3: email correspondence between Price and Wanda Dorsey, the EEO Counselor for Petersburg, Virginia Federal Correctional Complex ("FCC Petersburg"); and, (4) Attach. 4: docket sheet from Price's 1999 civil action in this Court, Case number 3:99cv00382. (PL's Resp. Attach. 1-4, ECF Nos, 21-2 through 21-5.) For ease ofreference, the Court employs the page numbers utilized by the CM/ECF docketing system when citing to the attachments to Price's Response. documents. See Witthohn v. Fed. Ins. Co., 164 F. App'x 395, 396-97 (4th Cir. 2006) (citing Energy, Inc. v. St. Paul Fire &Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001)). IL Procedural and Factual Background A. Summary of Allegations in the Complaint The Complaint addresses alleged acts ofdiscrimination and breaches of a collective bargaining agreement inthe context ofPrice s employment as a correctional counselor with the BOP at FCC Petersburg. Construing Price's Complaint liberally, the Court interprets the Complaint to raise three claims: Claim I: In utilizing the Affirmative Employment Program ("AEP"),^ the BOP breached the Collective Bargaining Agreement's ("CBA")^° directive not to restrain employees' exercise of their right to fair treatment and freedom from discrimination, (Compl. 45, 154(1)); Claim II: Discrimination on the basis ofrace, gender, and sexual orientation, in violation ofTitle VII ofthe Civil Rights Act of 1964, 42 U.S.C, §2000e16(a)," (Compl. 149, 154(2)); and. According to the Complaint, the "[AEP] is used to effect and/or regulate the hiring processes within the [BOP]," (Compl. 163.) The AEP "represents the following groups of people. Women, Blacks, Hispanics, Asian/Pacific Islanders, Native American Indians, disabled veterans, minority groups, (such as Lesbian, Gay, Bisexual, and Transgender individuals) and people with disabilities." {Id. at K66 (some punctuation corrected).) The AEP "target[s] certain minorities and genders for specific vacancies, thus showing that everyone is not being treated equally and some groups are being discriminated against." (Id. at170.) Price contends "Heterosexual, Caucasian (White) Males have been denied and are not [sic] being denied representation in and bythe [AEP] within the [BOP]." {Id. at164.) The March 9, 1998 Master Agreement (Compl. Ex. 6) is the CBA applicable to the time identified inthe Complaint. {See Compl. H23.) For ease ofreference, the Court will refer to this Master Agreement as the CBA. " Price cites both 42 U.S.C. §2000e-2 and §2000e-16 in his Complaint. As an employee of the BOPat FCC Petersburg, § 2000e-16(a) governs Price's discrimination claim against his federal agency employer. Section 2000e-16(a) provides in pertinent part: "All personnel actions affecting employees ... in executive agencies as defined in [5 U.S.C. § 105]... shall bemade free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. §2000e16(a). "'Executive agency' means an Executive department, a Government corporation, and an Claim III: Retaliation for prior EEOC complaint, in violation ofTitle VII ofthe Civil Rights Act of1964,42 U.S.C. §2000e-3(a),^^ (Compl. Kl 130, 156). On May 30, 2014, Price submitted adocument entitled "[AJttempt at Informal Resolution" dated May 29, 2014 ("Informal Grievance"), addressing it to FCC Petersburg Warden Eric D. Wilson ("Warden Wilson"). (Compl. f 24; id. Ex. 2, ECF No. 1-2,) The Informal Grievance states that Price "[has] been denied [his] rights under the [CBA]." {Id. Ex. 2 at 2.) Price avers that he has "not been treated fairly as outline[d] by the [CBA]; nor [has] [he] been free ofdiscrimination asoutline[d] by the [CBA]." {Id.) In the Informal Grievance, Price elaborates that, as a heterosexual, Caucasian male, the OOP's use ofthe AEP discriminates against him regarding internal advancement: As a Heterosexual, Caucasian (White) Male I am being discriminated against by the Agency known as The United States Department of Justice, The Federal Bureau of Prisons thru its use of the [AEP] ... in the hiring processes within the [BOP]. I am a Heterosexual, Caucasian (White) Male. I am being denied equal treatment as it relates to promotional employment or job advancement process within the [BOP]. Heterosexual, Caucasian (White) Males have been denied and are being denied representations in and by the [AEP] ... because we are not an identified minority group. independent establishment." 5 U.S.C. § 105. The BOP is an agency ofthe Department of Justice within the Executive department. The head of DOJ is the proper defendant in this case. 42 U.S.C. §2000e-16(c) (in a federal employee's Title VII suit, "the head ofthe department, agency, or unit, as appropriate, shall be the defendant".). j2 The United States Court of Appeals for the Fourth Circuit has held that a federal employee may raise a Title VII retaliation claim. Bonds v. Leavitt, 629 F.3d 369, 384 (4th Cir. 2011). Title VII makes it "anunlawful employment practice for an employer to discriminate against any ofhis [or her] employees . .. because he [or she] has opposed any practice made an unlawful employment practice by this subchapter." 42 U.S.C. § 2000e-3(a). For ease of reference, the Court refers to Price's discrimination and retaliation claims as his Title VII claims. I have been denied and are [sic] being denied equal protection . . . due to exclusion of Heterosexual, Caucasian (White) Males as a group by the fAEPl within the [BOP]. The adv^tage given to minorities by the [AEP] in the promotion and hiring process^ creates a disparity in treatment towards Heterosexual, Caucasian (White) Males who the program does not represent. The use of [the AEP] in the promotional employment process within the [BOP] discriminates against Heterosexual, Caucasian (White) Males. {Id. at 3, 5.) Price demands that the BOP "remove[ ]" theAEP because it "has created discrimination and violates the law and the natural right of all men and women to be treated equally." {Id. at 7.) The Informal Grievance does not identify a specific instance when the BOP's use of theAEP resulted in the discriminatory treatment of Price. On June 6, 2014, Price received anemail from FCC Petersburg's Human Resources Department with Warden Wilson's response to his Informal Grievance ("Response to Informal Grievance") attached to the email. The Response to Informal Grievance, dated June 5, 2014, directs Price to "contact the EEO Counselor within 45 days ofthe alleged discrimination" "[i]f [he] believe[s] [he] [has] been subjected to discrimination." (Compl. Ex. 3at 3.) The Response to Informal Grievance identifies Wanda Dorsey as the EEO Counselor for FCC Petersburg and contains Dorsey's email address and telephone number. On June 9, 2014, Price submitted a Formal Grievance. The Formal Grievance repeats verbatim the allegations that Price made in the Informal Grievance regarding the BOP's use of It seems that Price's Complaint concentrates on promotional opportunities rather than initial hiring decisions. Price's Informal Grievance notes that he "understands[s] that a diverse work force is a good thing[,] but any further use ofthe [BOP's AEP] outside ofthe initial hiring process is discriminatory." (Compl. Ex. 2 at 5.) Whether Price addresses hiring decisions, promotional decision-making, or both, does not alter this Court's determination. the AEP in violation ofthe CBA and the AEP's discriminatory impact. In the Formal Grievance, in addition tothe removal ofthe AEP, Price requested remedies including attorneys' fees, damages, and other injunctive relief: [T]hat all attorney, legal fees and expenses incurred in the processing of this grievance will be reimbursed by the agency. That a cease and desist order be issued if applicable. . . . That suitable compensation [is] granted (specifically, but not limited to. Remedies to Include Compensatory & Punitive Damages as outline[d] by EEOC guidelines, a promotion of 3 GL-grade levels at their current job,... [and] Back pay (Ex. 4 at 7—8.) Like the Informal Grievance, the Formal Grievance does not identify a specific time when the BOP used the AEP in a way that discriminated against Price. On June 9, 2014, the same day Price submitted his Formal Grievance, the Local Union President Derrick Bradden removed Price as Union representative. OnJune 11, 2014, Price received a response to his Formal Grievance from Warden Wilson ("Response to Formal Grievance"). The Response to Price's Formal Grievance denied it, and directed Price to contact EEO Counselor Dorsey a second time. OnJune 15, 2014, Price contacted Dorsey via email stating: "I wantto file a formal EEO Complaint. [P]lease forward me the documentation needed to do so." (PL's Resp. Attach. 3 at 3, ECF No. 21-4.) OnJune 16, Price sentDorsey an email stating "Please see attached Microsoft Word Document. This is a[n] EEO complaint of non - representation and discrimination of the [AEP] and its use inthe hiring practices ingovernment employment." (PL's Resp. Attach. 3 at4, ECF No. 21-4.)^^ On June 17,2014, Dorsey emailed Price the "EEO forms needed to start the informal counseling process." (Compl. Ex. 27, ECF No. 1-27.) She instructed Price to "review, sign and Price's submissions do not include the so-called EEO Complaint or "attached Microsoft Word Document" referenced in the June 16,2014 email. Defendant has no record of any June 16, 2014 EEO Complaint. (Hill Decl. fU 9-10, ECF No. 7-1.) send the completed forms" back to her "within seven business days." {Id.) Price never returned the forms, never followed through with informal counseling, and never filed an EEO complaint regarding these allegations. Price also never filed aMerit Systems Protection Board ("MSPB") appeal. On July 9, 2014, after speaking with Price on July 7, 2014, Dorsey emailed Price to confirm that he "filed with the Union and wanted to withdraw and closeout [his] informal counseling contact." (PL's Resp. Attach. 3 at 4, ECF No. 21-4.) Price responded that he "chose[] to file and ha[s] filed a grievance" and "no long[er] [has] the need to file an EEO complaint." {Id. Attach. 3at 1.) Within minutes, Dorsey responded to Price that "Effective [July 9, 2014,] your informal counseling contact isnow closed." {Id. Attach. 3 at 1.) B. Procedural History On September 5, 2014, Price filed his Complaint against Defendant seeking compensatory damages "in the form of a pay grade adjustment... with back pay," $300,000 in punitive damages, "all attorney, legal fees and expenses," and other relief. {See generally Compl. UK 1,154-57.) On February 27, 2015, Defendant filed a Motion to Dismiss. Price responded, and Defendant replied. Price and Defendant also submitted additional briefing. IIL Analysis The Complaint lacks coherence and contains sprawling assertions lacking linear connection, factually or legally. For the reasons discussed below, Price fails to satisfy his burden to demonstrate the existence ofthis Court's limited federal subject matter jurisdiction. Int'l Longshoremen's Ass % 914 F. Supp. at 1338 (citations omitted). Therefore, the Court will grant the Motion to Dismiss and dismiss the Complaint for lack ofsubject matter jurisdiction pursuant to Rule 12(b)(1), 10 A. No SubjectMatter Jurisdiction Exists Over Price's Claim for Breach of the CBA Because No Waiver of Sovereign Immunity Applies The Court lacks subject matter jurisdiction over Price's claim for breach ofthe CBA, meaning the Court must dismiss Claim I. Absent an identified waiver, sovereign immunity bars Price's claim for breach ofthe CBA against Defendant in her official capacity. Harrison, 2014 WL 29042, at *3. 1- Sovereign Immunity Bars Claim I Unless a Statutory Waiver Applies A suit against Defendant in his or her official capacity is a suit against the United States. Kentucky, 473 U.S. at 165-66. "It is well settled that the United States, as sovereign, is immune from suit except to the extent that it has consented to besued bystatute." Harrison, 2014 WL 29042, at *2 (listing cases). Statutory waivers ofsovereign immunity "cannot be implied but must be unequivocally expressed." Id. (citation omitted). "Moreover, they must be construed strictly in favor ofthe sovereign and may not be enlarged beyond what the statutory language requires." Id. (citation omitted). "The terms ofthe waiver define the Court's jurisdiction to entertain the suit." Id. (citation omitted). "Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit. Sovereign immunity isjurisdictional innature. Indeed, theterms of [the United States'] consent to be sued in any court define thatcourt's jurisdiction to entertain the suit." Id. at *3 (alteration in original) (citation omitted). Three statutes encompass the primary avenues for waiver of sovereign immunity in civil actions against the United States. First, the Federal Tort Claims Act ("FTCA") waives the United States's sovereign immunity for monetary claims brought by individuals injured by 11 certain tortious conduct offederal employees. 28 U.S.C. §2674;'^ 28 U.S.C. § 1346(b)(l);'^ Harrison, 2014 WL 29042, at *4. The Tucker Act -- consisting ofthe so-called "Little Tucker Act" and the "Big Tucker Act" - provides a second basis for waiving sovereign immunity. The Little Tucker Act permits adistrict court to exercise jurisdiction over non-tort claims against the United States for money judgments not exceeding $10,000. 28 U.S.C. § 1346(a)(2);'^ Harrison, 2014 WL 29042, at *3. "Forthese claims, district courts have concurrent jurisdiction with the Court of Federal Claims." Harrison, 2014 WL 29042, at *3; 5-ee also 28 U.S.C. § 1346(a)(2), When a plaintiff claims more than $10,000 in damages, however, the Big Tucker Act grants the Court of Federal Claims "The United States shall be liable, respecting the provisions ofthis title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances .... " 28 U.S.C. § 2674. Section 1346(b)(1) describes FTCA jurisdiction and provides inpertinent part: [T]he district courts ... shall haveexclusive jurisdiction of civil actions on claims against the United States, for money damages ... for injury or loss ofproperty, or personal injury or deathcaused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b)(1). The Little Tucker Act states in pertinent part: (a) The district court shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of: (2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States. 28 U.S.C. § 1346(a)(2), 12 exclusive jurisdiction over those non-tort money claims against the United States. 28 U.S.C. §1491;^^ Harrison, 2014 WL 29042, at *3 (distinguishing Little and Big Tucker Acts). "With few exceptions not relevant here. Tucker Act jurisdiction covers only claims for monetary relief, not injunctive relief, and special venue requirements apply to claims under the Little Tucker Act." Harrison, 2014 WL 29042, at *3 (citing 28 U.S.C. 1402(a); Richardson v. Morris, 409 U.S. 464, 465 (1973) ("[T]he [Tucker] Act has long been construed as authorizing only actions for money judgments and not suits for equitable relief against the United States.")). Finally, the Administrative Procedure Act ("APA") constitutes the third statute that "waives sovereign unmunity for certain actions against the government: 'A person suffering legal wrong because ofagency action, oradversely affected oraggrieved by agency action within the meaning of a relevant statute, is entitled tojudicial review thereof.'" Harrison, 2014 WL 29042, at *3 (quoting 5 U.S.C. §702). "The APA, however, applies only to claims 'seeking relief other than money damages' and does not apply 'if any other statute that grants consent to suit expressly orimpliedly forbids the relief which is sought.'" Id. (quoting 5U.S.C. §702). 2. No Statutory Waiver of Sovereign Imnmnitv Applies to riaim f Inthis case, none of the above waivers of sovereign immunity applies to Price's claim for breach of the CBA. First, the FTCA does not apply to Price's non-tort breach of the CBA claim. Second, Price does not seek monetary damages with respect to Claim I, making the limited 18 The Big Tucker Act addressesjurisdiction as follows: "The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States U.S.C. § 1491(a)(1). 13 " 28 waivers ofsovereign immunity codified in the Little Tucker and Big Tucker Acts inapplicable. Finally, although Price seeks a"fmd[ing]" that Lynch breached the CBA, (Compl. ^ 154(1)), such arequest does not constitute the type ofinjunctive relief for which the APA could provide a limited waiver of sovereign immunity.^® Without more, Price contends that "[t]his Court has jurisdiction." (Compl. ^ 5.) Such anunsupported proposition cannot satisfy his burden "to prove that federal jurisdiction is proper."^' Int'l Longshoremen's Ass %914 F. Supp. at 1338 (citations omitted). Accordingly, in the absence of any statutory waiver, sovereign immunity bars Price's claim for breach of the CBA. Therefore, this Court lacks subjectmatterjurisdiction over Claim I and will dismiss it. Price avers that he does notseek monetary damages with respect to Claim I, butrather "has only requested that the [C]ourt find that the [BOP] did in fact breach the [CBA]." (PL's Resp. 4.) Given Price's status as a federal employee, any request for monetary relief regarding his claim for breachof the CBA would likely fail as a matter of law: [T]o the extent thatthe Little Tucker Act, 28 U.S.C. § 1346(a)(2), waives sovereign immunity and authorizes federal district courts to hear contract claims against the [United States] of $10,000 or less, the [Civil Service Reform Act of 1978 ("CSRA"), 5 U.S.C. § 1101, e/ seq.] in effecttrumps that consent to suit and prevents federal districtcourts from exercising jurisdiction over claims for breach of a collecting bargaining agreement between a union and an agency of the [United States]." Rivera v. Holder, No. 3:10cv544, 2010 WL 5187929, at *3 n.7 (E.D. Va. Dec. 14,2010) (citing cases). As a federal employee, Price cannot use the APA to challenge the BOP's employment actions. Filebarkv. U.S. Dep'tofTransp., 555 F.3d 1009, 1010 (D.C. Cir. 2009); Hallv. Clinton, 235 F.3d 202, 206 (4th Cir. 2000) ("Congress intended that the CSRA would operate to the exclusion ofall other statutory remedies for claims arising out ofthe federal employment relationship.") The Court discusses the CSRA statutory process that would be available to Price in lieu of the CBA's negotiated grievance procedure in Part in.B,2, infra. Price suggests in briefing that 42 U.S.C. § 1981a(b)(3) constitutes a waiver of sovereign immunity. However, the statute, which outlines limitations on damages in employment discrimination cases, does not constitute a waiver of sovereign immunity for Price's breach of the CBA contract claim. 14 B. No Subject Matter Jurisdiction Exists Over Price's Title VII Claims Because Price Failed to Exhaust His Administrative Remedies This Court lacks subject matter jurisdiction over Price's Title VII claims (Claims II and III) because Price did not exhaust his administrative remedies. See Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009). L Federal Employees Must Exhaust Their Administrative Remedies Before Filing Title VII Employment Discrimination Claims in Federal Court Title VII "creates a right of action for both private-sector and certain federal employees alleging employment discrimination on the basis of race, color, religion, sex, or national origin." Laber v. Harvey, 438 F.3d 404,415 (4th Cir. 2006) (footnotes omitted) (citing 42 U.S.C. §§ 2000e-5(f)(l) (private-sector employees), 2000e-16(c) (federal employees)). "All employees, private-sector or federal, alleging such discrimination must, however, exhaust their administrative remedies before exercising this right." Id. at 415-16 (citing cases). "This requirement exists to minimize judicial interference with the operation of the federal government. It also affords an agency the opportunity to right any wrong it may have committed." Austin v. Winter, 286 F. App'x 31, 35 (4th Cir. 2008) (citations omitted) (internal quotation marks omitted). The failure to exhaust deprives this Court of subject matter jurisdiction. Jones, 551 F,3d at 300. 2. Specific Considerations When a Collective Bargaining Agreement Exists a. Irrevocable Election of Procedure When a federal employee such as Price also is subject to a collective bargaining agreement, the CSRA and Federal Service Labor-Management Relations Act, 5 U.S.C.§§7101- 15 7135, ("the FSLMRA")^^ permit a federal employee "aggrieved" by discrimination in the workplace to "raise the matter under a statutory procedure [such asthe EEO complaint process] orthe negotiated grievance procedure [provided for in the applicable collective bargaining agreement], but not both." 5U.S.C. §7121(d);^^ see also 29 C.F.R. § 1614.30ICa).^"^ The FSLMRA, Title VII of the CSRA, "created a statutory scheme governing labor relations between federal agencies and their employees." Nat'IAss 'n Gov'tEmps. v. Fed Labor Relations Auth, 830 P. Supp, 889, 891 (E.D. Va. 1993). Section 7121(d) of the FSLMRA provides in full: Anaggrieved employee affected by a prohibited personnel practice under [5 U.S.C, § 2302(b)(1)] whichalso falls under the coverage of the negotiated grievance procedure may raise the matter undera statutory procedure or the negotiated procedure, but not both. An employee shall be deemed to have exercised his [or her] option under this subsection to raise the matter under either a statutory procedure or the negotiated procedure at such time as the employee timely initiates an action under theapplicable statutory procedure or timely files a grievance in writing, in accordance with the provisions of the parties' negotiated procedure, whichever event occurs first. Selection of the negotiated procedure in no manner prejudices the right of an aggrieved employee to request the [MSBP] to review the final decision pursuant to [5 U.S.C. § 7702] in the case of any persormel actionthat could have beenappealed to the [MSBP], or, where applicable, to request the [EEOC] to review a final decision in any othermatter involving a complaint of discrimination ofthe type prohibited by any law administered by the [EEOC]. 5 U.S.C. § 7121(d). Section 2302(b)(1) prohibits discrimination against any employee "on the basis of race, color, religion, sex, or national origin, as prohibited under [Title VII]." 5 U.S.C. § 2302(b)(1)(A). Section 7702 sets forth procedures for appeals to the MSPB. "The MSPB has jurisdiction to hear appeals of certain adverse federal employment actions, such as removal, suspensions lasting more than 14 days, and constructive discharge." Rivera, 2010 WL 5187929, at *4 n.8 (citing 5 U.S.C. §§ 7512-13). A "person... employed by an agency subject to 5 U.S.C. § 7121(d) and . .. covered by a collective bargaining agreement that permits allegations of discrimination to be raised in a negotiated grievance procedure" who "wish[es] to file a complaint or a grievance on a matterof alleged employment discrimination must elect to raise the matter under either part 1614 or the negotiated grievance procedure, but not both." 29 C.F,R. § 1614.301(a). 16 Afederal employee makes his or her election to proceed under either the statutory procedure or the negotiated grievance procedure "at such time as the employee timely initiates an action under the applicable statutory procedure or timely files a grievance in writing, in accordance with the provisions of the parties' negotiated procedure, whichever event occurs Jirst" 5U.S.C. §7121(d) (emphasis added). Because the federal employee cannot pursue both statutory and negotiated grievance procedures, the election to proceed under either isbinding. Id; see also Wilson v. Hagel, No. 5:13cv365, 2014 WL 3738530, at *3 (E.D.N.C. July 29, 2014) ("The employee cannot pursue both procedures and the election, once made, isirrevocable."); Moreno v. McHugh, No. ELH-10-2511, 2011 WL 2791240, at *9 (D. Md. July 14, 2011) ("Notably, the employee must choose between the statutory orgrievance process; the employee may notpursue both remedies. And, the election between a statutory or a negotiated grievance procedure is irrevocable. This means thatanemployee is bound by [his or] her initial election." (citations omitted) (internal quotation marks omitted)). Afederal employee "is deemed to have irrevocably elected [his or] her option when [he or] she either (1) timely initiates anaction under the applicable statutory procedure or (2) timely files a grievance in writing, whichever occurs first." Wilson, 2014 WL 3738530, at *3; seealso Moreno, 2011 WL 2791240, at *9 ("[A]n employee covered by a collective bargaining agreement with an applicable grievance process may elect one of two options, but not both: (1) [he or] she may file a grievance pursuant to [his or] herunion's negotiated grievance; or (2) [he or] she may make a statutory election, by filing a formal EEO complaint "). "An election to proceed under [the statutory EEO complaint process] is indicated only by the filing of a written complaint; use of the pre-complaint process . .. does not constitute an election for purposes of thissection." 29 C.F.R. § 1614.301(a). "An aggrieved employee who 17 files acomplaint under [the statutory EEO complaint process] may not thereafter file a grievance on the same matter." Id. Likewise "[a]n election to proceed under a negotiated grievance procedure is indicated by the filing of a timely written grievance." Id. Importantly, a federal employee pursuing a claim under either the statutory procedure or the negotiated grievance procedure must exhaust his or her administrative remedies before raising that claim in federal court. See Laber, 438 F.3d at 415; Zuzul v. McDonald, —F. Supp. 3d , No. I:14cv251, 2015 WL 1474924, at *7 (M.D.N.C. Mar. 31, 2015) (citations omitted) (describing exhaustion inthe negotiated grievance procedure context); Moreno, 2011 WL 2791240, at *8-9 (same); Campbell v. Green, No. I:07cv675,2009 WL 1255113, at *5 (E.D. Va. May 5, 2009) (describing exhaustion ofadministrative remedies by federal employee in statutory EEO complaint process), affd, 353 F. App'x 879 (4th Cir. 2009). b. Steps to Exhaust Negotiated Grievance Procedure of Pure Discrimination Claim Price elected to pursue his employment discrimination claims through the negotiated grievance procedure when he filed his Formal Grievance on June 9, 2014, before he submitted any EEO complaint. (Compl, Ex. 4, ECF No. 1-4; 5 U.S.C. § 7121(d).) A grievant such as Price pursuing a "pure discrimination" claim^^ exhausts the negotiated grievance procedure when he or she: (1) appeals an arbitration decision to the EEOC; or, (2) in a case where Price's Formal Grievance "involves claims ofdiscrimination only," making it a "pure discrimination" claim. Moreno, 2011 WL 2791240, at *8 n.l6 (citation omitted); see also PL's Sur-Reply 4 ("Plaintiff is notraising a personnel issue, buta discrimination issue [I]t is not a mixed claim."). In contrast, a "mixed case"would be a "complaint of employment discrimination filed with a federal agency based on race, color, [or] sex ,.. related to or stemming from an action that can be appealed to the [MSPB]. The complaint may contain only an allegation of employment discrimination or it may contain additional allegations that the MSPB has jurisdiction to address," 29 C.F.R. § 1614.302(a); see also Moreno, 2011 WL2791240, at *8 18 arbitration is not available, appeals the agency's final decision to the EEOC.^^ 42 U.S.C. §2000e-16(c);^^ cf. Fernandez v. Chertoff, 471 F.3d 45, 54 (2d Cir. 2006) C'[I]n apure discrimination case, an employee who chooses the negotiated grievance procedure must appeal the arbitrator's award to the EEOC before bringing suit."); Koch, 934 F. Supp. 2d at 269 (finding federal employee failed to exhaust administrative remedies ofhis Title VII claim when, after electing to pursue the negotiated grievance procedure, the employee did not appeal the agency's final decision to the EEOC in case where the union and agency declined to invoke arbitration); Moreno^ 2011 WL 2791240, at *8 ("Exhaustion ofthe negotiated grievance process generally includes referral ofthe grievance to arbitration and the appeal ofthe arbitration decision, either to the EEOC or the [MSPB]...."); Smith v. Jackson, 539 F. Supp. 2d 116, 130 (D.D.C. 2008) n.l6 (suggesting indicta that retaliatory termination for whistleblower activity could be a mixed case because the employment action might not stem from discrimination prohibited by Title VII). 26 • As isthe case here, some collective bargaining agreements grant only the agencyemployer or the union the ability to pursue a claim to arbitration. See Moreno, 2011 WL 2791240, at *13; Compl. Ex, 6 ("CBA") Art. 31, §g(l)-(2), ECF No. 1-6. When the agencyemployer and union decline to pursue a claim to arbitration, the grievant-employee must appeal the agency-employer's final decision to the EEOC in order to exhaust his or her administrative remedies. Koch v. Walter, 934F. Supp. 2d 261, 269 (D.D.C, 2013), Section 2000e-16(c) provides in pertinent part: Within 90 days ofreceipt ofnotice offinal action taken by a department, agency, orunit referred to in [42 U,S.C. § 2000e-5(a)], or by the [EEOC] upon an appeal fi-om a decision or order ofsuch department, agency, or unit on a complaint of discrimination based onrace, color, religion, sex or national origin, brought pursuant to [42 U.S.C. § 2000e-5(a)],... or after one hundred and eighty days fi-om the filing of the initial charge with the department, agency, or unit or with the [EEOC] on appeal fi-om a decision or order of such department, agency, or unit until such time as final action may betaken by a department, agency, or unit, anemployee ... if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action as provided in [42 U.S.C. § 2000e-5].... 42 U.S.C, §2000e-16(c). 19 ("[JJudicial review is only available toanemployee alleging a pure discrimination claim after he [or she] has exhausted his [or her] administrative remedies in dealing with his [or her] grievance, and appealed the final agency action on his [or her] grievance to the EEOC,"); Johnson v. Peterson, 996 F,2d 397, 401 (D.C. Cir. 1993) ("The employee [with apure discrimination claim] who chooses the negotiated procedure may appeal the arbitrator's decision to the EEOC. Only after the EEOC has rendered a decision or failed to do so . .. may the employee use [42 U.S.C. §] 2000e-16(c) and initiate suit in district court."). 3. After Electing the Negotiated Grievance Procedure, Price Failed to Exhaust his Administrative Remedies Price failed to exhaust his administrative remedies because, after electing to pursue his pure discrimination claims using the CBA's negotiated grievance procedure, he did not complete that process. 42U.S.C. § 2000e-16(c); Fernandez, 471 F.3d at 58; Johnson, 996 F,2d at 401; Koch, 934 F. Supp. 2dat 269; Moreno, 2011 WL 2791240, at *8 (citation omitted). Therefore, this Court must dismiss Price's Title VII claims for lack of subject matter jurisdiction. Jones, 551 F.3d at 300-01. a* The CBA^s Grievance and Arbitration Procedures Price's June 9, 2014 Formal Grievance constituted his election to pursue his employment discrimination claims through the negotiated grievance procedure because he had not yet submitted any EEO complaint. (Compl. Ex. 4, ECF No. 1-4; 5 U.S.C. § 7121(d).) Once Price elected this procedure, he remained obligated to exhaust the negotiated grievance procedure before raising any Title VIIclaim in federal court. Later, 438 F.3d at 415; Zuzul, 2015 WL 1474924, at *7; Moreno, 2011 WL 2791240, at *8. Article 31 of the CBA provides "[a]ny employee" with"the rightto file a formal grievance withor without the assistance of the Union." (CBA Art. 31, § c.) "Grievances must 20 be filed within forty (40) calendar days ofthe date ofthe alleged grievable occurrence." {Id. Art. 31, § d.) "Formal grievances must be filed on Bureau of Prisons 'Formal Grievance' forms and must be signed by the grievant orthe Union." {Id. Art. 31, § f.) "After a formal grievance is filed, the party receiving the grievance will have thirty (30) calendar days to respond to the grievance." {Id. Art. 31, §g.) "[I]f the final response is not satisfactory to the grieving party and that party desires to proceed to arbitration, the grieving party may submit the grievance to arbitration under Article 32 of[the CBA] within thirty (30) calendar days from receipt ofthe final response; and" "agrievance may only be pursued to arbitration by the Employer orthe Union." {Id Art, 31, § g(l)-(2).) Article 32 ofthe CBA delineates the procedures for arbitration, including notifying the other party inwriting of the intent to invoke arbitration and requesting thatthe Federal Mediation and Conciliation Service ("FMCS") submit a list ofarbitrators. (CBA Art. 32, §§ a-b.) "The arbitrator shall be requested to render a decision as quickly as possible, but in any event no later than thirty (30) calendar days after the conclusion ofthe hearing, unless the parties mutually agree to extend the time limit." {Id. Art. 32, § g.) b. Price's Actions Regarding Exhaustion Price complied with Article 3rs requirements to file his grievance on the official BOP form and to direct his grievance to the appropriate individual. Warden Wilson. (Compl. Ex. 4.) Warden Wilson responded within the required 30 calendar days. (Compl. Ex. 5.) Upon receipt ofthe final, unsatisfactory response (here, Warden Wilson's June 11, 2014 Response to Formal Grievance), the CBA required that the "the grieving party" "submit the grievance to arbitration under Article 32 of [the CBA] within thirty (30) calendar days fi-om receipt of the final response." (CBA Art. 31, § g(l).) 21 The CBA permits only the employer (in this case the BOP) or the Unionto submit a grievance to arbitration. {Id. Art. 31, § g(2).) The deadline for the BOP or the Unionto submit Price's Formal Grievance to arbitration expired on July 11,2014. Neither the Union nor the BOP invoked arbitration regarding Price's Formal Grievance.^^ (Compl. 40-41.) While Price could not have submitted his grievance to arbitration individually. Price also did not appeal the BOP'S denial ofhis grievance to the EBOC. (Hill Decl. 9-10; Singleton Decl. f 7 (discussing MSBP appeal).) c. Price Did Not Exhaust Because He Did Not Appeal an Arbitration Award or the BOP's Final Decision to the EEOC Price did not exhaust the negotiated grievance procedure because hedid not appeal the BOP's denial ofhis formal grievance oran arbitration decision to the EEOC, a necessary step to complete exhaustion. 42 U.S.C. § 2000e-16(c); Johnson, 996 F.2d at401; Koch, 934 F. Supp. 2d at269; Moreno, 2011 WL 2791240, at *8 (citation omitted);^^ Smith, 539 F. Supp, 2d at 131- Rather than eventually seeking arbitration on Price's behalf, on June 9,2014, the same day Price submitted his Formal Grievance, union leaders notified others that Price would no longer serve asthe Union's shop steward, "Effective Immediately." (Compl. ^ 155(1); id. Ex. 22, ECFNo. 1-22.). InMoreno, theplaintiff, a former federal employee at the Child Development Center I ("CDC") at Fort Meade, Maryland, alleged employment discrimination on the basis of race, color, and national origin, inviolation ofTitle VII, and on the basis of a hearing impairment, in violation ofthe Rehabilitation Act of 1973, 29 U.S.C, § 791 et seq., following her termination after an incident where a child was injured atthe CDC. 2011 WL 2791240, at *1. The plaintiff elected to raise her claims through the negotiated grievance procedure but did notpursue her grievance to arbitration. Id. at *4, *13. The Moreno court found it lacked subject matter jurisdiction over the plaintiffs claims because she failed to exhaust her administrative remedies. Id. at *13 ("Because plaintiff elected to pursue herclaim via the negotiated grievance procedure, butdid notpursue it to its conclusion, she failed to exhaust her remedies."). Importantly, the collective bargaining agreement at issue in Moreno, like Price's CBA, provided that the "Union or the Employer may refer" a "grievance ... not satisfactorily settled." Id.', see CBA Art. 31, § g(2) ("[A] grievance may only bepursued to arbitration by the Employer or the Union."). 22 32.^® Because Price did not exhaust his administrative remedies, the Court lacks subject matter jurisdiction over Price's Title VII claims. Jones, 551 F.3d at 300. In the absence of subject matter jurisdiction, this Court must dismiss Claims II and III. C. The Court Will Not Grant Leave to Amend Under Rule 15 of the Federal Rules of Civil Procedure, a "court should freely give leave [to amend] whenjustice so requires." Fed. R. Civ. P. 15(a)(2). Although motions to amend should be granted liberally, this Court declines to give Price leave to amend because amendment in this case would be futile. Price cannot correct existingjurisdictional defects through amendment. See Equal Rights Ctr. v. Niles BoltonAssocs., 602 F.3d 597, 603 (4th Cir. 2010) ("A district court may deny a motion to amend when the amendment would be prejudicial to the opposing party, the moving party has acted in bad faith, or the amendment would be futile."); United Statesex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008) (holding that a district court may deny leave to amend when the proposed amended complaint fails to satisfy the requirements of the Federal Rules of Civil Procedure because the amendment would not survive a motion to dismiss, rendering any attempt to amend futile). In Smith, plaintiff, a former federal employee at the Department of Housing and Urban Development, alleged retaliation, a hostile work environment and disparate treatment based on his race and age, in violation of Title VII, 42 U.S.C. § 1981, and the Age Discrimination in Employment Act, 29 U.S.C. § 621 seq. ("ADEA"). 539 F. Supp. 2d at 119. Smith contended that his former supervisor attacked his performance, shouted at him, threatened disciplinary action, revoked a compressed work schedule, issued a proposal to suspend him, and physically blocked his exit from the office. Id. Smith filed a grievance, but neither Smith nor his Union pursued his grievance beyond the first step. Id. at 126, 132. The court concluded that Smith did not "exhaust[ ] his administrative remedies" as to certain claims and dismissed them for lack of subject matter jurisdiction. Id. 23 IV. Conclusion Forthe foregoing reasons, the Court will GRANT Defendant's Motion to Dismiss and DISMISS THE COMPLAINT for lack of subject matter jurisdiction. (ECF No. 6.) An appropriate Order shall issue. /s/ M. Harmah pajidk United States District Judge Richmond, Virginia Date: ^^7-/5' 24
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